land area, and the unique development of the relationship between our fellow Americans on Guam and the rest of the U.S. Government, it would almost occur to me that maybe the fairer test would be the land value as of the time the money was actually received, because it would take the increment in value, if you will, for the person getting a payment to buy a substitute piece of property in this limited land area. So, I am not sure the traditional formula and condemnation as exists on this large continental landmass on the mainland is really equitable when you have a very restricted amount of land area, such as you have in Guam. You have got so much, and there is just no more. And if you have to give up your land, then you would still like to buy other land, and you would need the ongoing price at the time you get the money to buy substitute property for it. So, I would be fairly strongly inclined to the view that an equitable yardstick in terms of the people of Guam would be what the land value was at the time the Guamanian got the money. Mr. RUPPE. In a case like Point Reyes Park, where the land values were escalating quite rapidly, those individuals who finally settled because of condemnation or lawsuit at a point 2 or 3 years after the Government made the initial offer, would get far less money for that property than they would if the final determination of value was at the date of ultimate settlement or handing over the check. I know that in the case of Pictured Rocks National Park, between the time the Government made the offer and the final lands went to condemnation, private lands outside of the park area probably more than doubled. Mr. BURTON. I believe that. But the bulk of these holdings were taken under circumstances of serious national emergency. We must distinguish between the legislative taking problem issue that we are confronted with in establishing national parks, and the kind of military taking that took place and the context in which it took place on Guam. My time has expired. The gentlelady from Hawaii. Mrs. MINK. Thank you, Mr. Chairman. Mr. Won Pat, could you tell me what percentage of the takings by the Navy were by condemnation? Mr. WON PAT. According to information from the counsel of the committee here, he says between 90 to 100 percent. Mrs. MINK. Condemnation proceedings were actually filed in at least 90 percent of the cases? With what court were the condemnations, or with what government body, I should say, were the condemnation proceedings filed? Mr. WON PAT. Well, in those days-in other words, the military established the so-called Guam court. Now, they have their own appointed judge, of course, who is a Navy employee. Mrs. MINK. And these were Navy courts that were especially constituted by the Navy to determine these cases? Mr. WON PAT. That is right. Mrs. MINK. And all the employees of the court, the judges, and those that were responsible for handling the condemnation, were employees of the Department of the Navy? Mr. WON PAT. Prior to the Organic Act, of course, the Government of Guam was called the Naval Government of Guam, and it was run by the Navy. The Governor was the commanding officer, and also the various departments were headed by military men. They had civilian employees, of course, of the military. Mrs. MINK. The Navy's statement dated August 31, 1972, by Captain Willett says that after condemnation proceedings are filed, then the value of the land was determined by trial. What does the captain mean by that term "by trial"? Mr. WON PAT. It is true that there were some trials held. But as I said, they were tried, of course, in the so-called Navy court. Mr. RUPPE. Would the gentlelady yield? Mrs. MINK. Yes. Mr. RUPPE. When these jury trials were held did the court accept the determination of the jury, and if so, was the jury composed of residents of your island, Tony? Mr. WON PAT. Oh, yes, when that came to the jury, but we are talking about in the period when there was no jury. Mr. RUPPE. In the period where there was a jury determination, was the final jury determination accepted by the court? Mr. WON PAT. Yes, sir. Mrs. MINK. In the period that you are considering prior to 1957, March 13, were there any juries constituted to determine the value of the lands? Mr. WON PAT. No, ma'am. Mrs. MINK. So when they talk about a trial they were talking about merely a judge sitting to make the determination himself without the benefit of the citizens of that community? Mr. WON PAT. That is correct. Mrs. MINK. What percentage of the final decisions were by these socalled courts or trials? Mr. WON PAT. I don't have the figures for that, ma'am. Mrs. MINK. How do you account for the very small percentage which you indicate actually went to trial, how do you account for the fact that they didn't pursue this matter to trial. Mr. BоHN. May I answer that question? Mr. WON PAT. I will ask the counsel to answer it. Mr. BоIN. The technique was about as follows: The condemnations were filed as much as anything to assure a clear title, because there was confusion in titles, so the Navy filed a condemnation, many times on leaseholds, and sometimes in fee. And they then sought to negotiate a sale. In many instances the negotiation was successful. And the report is replete with 110 summaries. In every instance undue pressures, we contend, were used. And you can list them. The first one is, many of the people were actually employed by the Navy, and they were threatened with the loss of their jobs. In some instances they werein many instances there was an underlying gratitude, and their patriotism was appealed to. In other instances they had no place to turn, there wasn't any place to go. So they were told, "Now, if you sign this paper, you will get paid. but if you don't sign this paper, you are not going to get paid and your land has been taken anyhow." And so forth. So, those pressures forced so-called settlements which reduced to a minimum the amount of the trials. And then in those few trials that were held, the judges were Navy judges for the most part, and they told them, "Well, if you don't take this, there are going to be some reprisals." And that discouraged further trials. That is up to August 1, 1950. From August 1, 1950, to March 13, 1957, we had a U.S. district judge, a regularly appointed district judge. The pattern changed for the better. But still there were no civilian juries, and as we point out in the report, a dearth of acceptable tests which can be used in courts to establish value. The test normally used by appraisers is so-called comparable sales, which in Guam didn't exist, they weren't there. So, the appraisal techniques were poor, there were no previous appraisals and no jury. And that is the pattern. Mrs. MINK. The U.S. Constitution guarantees that no property shall be taken without the payment of just value. Would you say that the property of these citizens taken prior to 1950 was without constitutional guarantees being accorded the residents of the territory, and is that the basis for this bill? Mr. Bonn. That is the basis for the bill. There is a cliche in legal background which says, the Constitution does not follow the flag. So, that from a technical point of view, prior to 1950 the Constitution of the United States did not apply. Nor did it apply after August 1, 1950. But the Organic Act was a partial substitute, omitting the jury. But you are quite correct, the thesis of the report is that due process, or the equivalent of due process, was simply not available in Guam, it just wasn't there. Mrs. MINK. So perhaps legally we could not rely upon the U.S. Constitution because citizenship status and protection by the Constitution could not be proved until 1950, but from a moral standpoint, since we did have jurisdiction and control over the citizens of Guam prior to 1950, this would also serve at least as a moral basis for the Congress considering a bill of this nature. Mr. BOHN. That is absolutely correct. Mr. RUPPE. Thank you, Mr. Chairman. Mr. WON PAT. I wonder if your associate would enlighten me as to how today we might develop a better idea of the values as of the 1950 or 1945, or whenever the land was taken? What techniques, if you will, or what means could be developed to better, perhaps, evaluate the properties that were condemned or perhaps adversely purchased in these years. Mr. BOHN. Admittedly that is a difficult question, a difficult question to answer. Beginning in 1957, however, you began to see some-and bear in mind that the cases tried beginning March 15, 1957, were cases where the takings were anywhere from 10 to 15 years or earlier, so that you began to have a series of jury values in 1957 at effective prior dates. So, you have that guide post. It is my understanding that there are a group of real estate experts who have been used in some instances in the Indian cases who have developed some formulas where they can relate historically to certain elements, and from that translate the historic and factual elements into a formula, or into dollars. And some new formula of that sort will have to be devised if this is to proceed. But we do have some pretty good guidance, because actually the thing really jumped by multiples of 20 or so of that sort the minute there were juries. Mr. RUPPE. You are suggesting, then, that when the jury trial started in 1957 that those value determinations went back as far as a dozen years to 1945 ? Mr. BоHN. Yes. Mr. RUPPE. And that these price determinations were perhaps 2 times higher than the so-called sales of the middle forties? Mr. BOHN. Twenty times or more. Mr. RUPPE. Is that true in a number of cases, or are you speaking of an isolated instance? Could you make any approximation or offer us a guideline as to how, in general, the jury values were multiples of previous acquisition figures? Mr. BOHN. I was there at the time, but I haven't reviewed those fig ures recently, so I would ask to be excused. I will be able to furnish them next year, because that is phase 2 of our study. But generally speaking the multiples are 20 times or more. The figures are outstandingly bad from the standpoint of the fairness of the negotiated sales. They dealt out there in square meters and in hectares more than acres and square feet. And you will be dealing with 10 cents a square meter, where, perhaps, the appropriate value would be $2, or you would be dealing in 0.02 per square meter, where the proper value might be 6 cents. You are dealing in those types of multiples. And we have been unable so far to really develop, to really understand the Navy pattern. what they have paid. It is subject to the possible interpretation that it was pretty much a question of whim. I think they did go back to some prewar sales. And as we point out in this report, the land has a whole different concept in Guam than it has in the U.S. Land just wasn't sold then. They did use some prewar sales, and they did use a few transfers, and other formulas I don't know how they got them, but they are wholly unrelated to what the juries began to do when we had a civilian jury in 1957, although we did have some very good U.S. attorneys immediately preceding, and I think they used a multiple of five, or something like that, in the settlements that they OK'd before they had the jury trials. Mr. RUPPE. Mr. Won Pat, can you present or find for our perusal any press releases or documentation or public statements dating back to 1945 thru 1950, indicating that the people on Guam were strongly opposed to the sale, weren't aware of the techniques for developing adequate values for the land, or protested of the offering prices, or perhaps even the final purchase prices, agreeing to it perhaps under duress? Is there any evidence that could possibly better develop a basis for this legislation? Mr. WON PAT. I think that we still have a lot of people who actually owned land that was taken-as a matter of fact, one of the witnesses here today will be able to point that out. And I think we can provide you with that other information. Mr. RUPPE. I think so. Because I certainly understand your concern and the concern of your associates here today. I think that we have to know that a different process was used, or that the people in Guam were under duress, or were under pressure, or simply didn't feel that they had all of the protection of the laws that we enjoy in this country. Is this the first time that this legislation has been introduced or a hearing held before the Congress? Mr. WON PAT. This is the first time, although the matter has been taken up with the committee when they visited Guam. Mr. RUPPE. But this is the first time that we have had legislation? Mr. WON PAT. This is the first time that we have had legislation. Mr. RUPPE. I certainly understand that we should move as rapidly as possible. I wonder if this late in the session whether we are going to develop the documentation and the background material necessary to bring out the bill in this session of the Congress. I can see where answers to the questions that have been asked of you and the Defense Department witnesses will take time to prepare as far as the documentation is concerned. Mr. WON PAT. We are still in the process of compiling all this information necessary, of course, to fully justify the legislation. We recognize, of course, that because of the element of time that this legislation will not be able Mr. BURTON. Will the gentleman from Michigan yield? Mr. RUPPE. I yield. Mr. BURTON. It was Mr. Won Pat's view, and I think the hearings have confirmed the wisdom of it, that if we had this preliminary goaround, we would then be able to identify the kind of information we need to act with dispatch in the next Congress. But if we fail to have this kind of a hearing at this point in time, we just delay action that much longer. And I think the hearings today have confirmed Mr. Won Pat's assessment of the problem. And, hopefully, during the recess we will have the Department of Defense and others process this information so that we can proceed in the early part of next year with hearings and action on the bill. The gentleman from New Mexico. I want to thank the witness for his statement. And I appreciate the problem, and can certainly understand that if the people of Guam who initially transferred this property cannot get adequate compensation, it is the duty and obligation of this committee and this Congress to redress the very grievous wrong that they have suffered. Mr. BURTON. The gentleman from New Mexico, Mr. Lujan. Mr. LUJAN. Thank you. Mr. Chairman. Tony, in your statement you referred to S. 1215. Mr. WON PAT. Yes, sir. Mr. LUJAN. What has happened to that? Did the Senate pass it- Mr. LUJAN (continuing). Or was there any further action on it? What is the status of it? Mr. WON PAT. The bill is still in the committee. |